Saturday, July 31, 2010

The Legal History Blog thanks Ariela Gross, USC Law School, and Steve Vladeck, Washington College of Law, American University, our guests during the month of July.Steve has posted on the history of Habeas Corpus:

In my last post on Paul Halliday's new history of habeas in pre-revolutionary England, I thought I'd end at the beginning. In INS v. St. Cyr in 2001, Justice Stevens wrote for the majority that, at a minimum, the Suspension Clause protects the writ of habeas corpus "as it existed in 1789." Ironically, perhaps paradoxically, Halliday's research suggests that those who object to the Supreme Court defining the scope of the Suspension Clause by reference to habeas only “as it existed in 1789” “may find that 1789 was no minimum at all"--that 1789, or the period around it, anyway, may well have been the high-water mark for the scope of English habeas.

Indeed, sprinkled throughout Halliday’s book are a number of statements about the scope of the writ, with the caveat “[a]t least until the 1790s.” Nothing particular happened in 1790, but as Halliday explains, a series of developments in the years and decades thereafter led to a significant decline in both the practical and legal significance of habeas corpus throughout the British Empire.

For example, Parliament enacted a series of suspension statutes arising out of England’s renewed wars with France between 1794–95 and 1798–1801, with the 1799 Suspension Act including provisions for stricter confinement of individual prisoners and unrelated authority for detention arising out of the rebellion then underway in Ireland. Thus, for the first time, Parliament used the pretext of suspension with regard to one emergency to justify detention arising out of another.

“Beginning in the 1790s,” though, “suspension became just one part of wider statutory campaigns against political dissent in all forms.” In 1793, Parliament enacted the Aliens Act, which imposed a series of new sanctions—including detention without bail or deportation—on foreigners, especially Frenchmen, who failed to comply with a series of new regulations. Parliament also enacted the Indemnity Act of 1801, which appeared to take jailers off the hook for claims of false imprisonment or other abuse arising out of suspensions, even past ones. In fine, “[t]he 1790s would mark the start of a legislative onslaught on liberties of every kind, a unified assault against which the writ proved almost powerless.” And even in the context of the writ’s territorial scope, Parliament would eventually preclude the justices from sending the writ into overseas colonies that had their own tribunals capable of issuing the writ, so providing in the Habeas Corpus Act of 1862. It may not have mattered to colonists in Australia or India that they could no longer seek relief from the justices in Whitehall, but in the larger context of whether the justices or Parliament had the last word when it came to habeas, every new statute seemed to tilt that question further in favor of the legislature.

There’s more to it. As Halliday explains, beginning in the 1790s, Lord Chief Justice Kenyon—who replaced Lord Chief Justice Mansfield upon the latter’s 1788 retirement—began pushing for more vigorous adherence to the rule against controverting the return, refused to settle cases, and otherwise retreated from the expansive nature of habeas practice under his predecessors. But separate from the personalities behind the bench, the short version is that the more Parliament intervened, the weaker the writ became. The 1862 example aside, it wasn’t that Parliament was formally interfering with the power of King’s Bench, but that it was vitiating the justices’ ability to do anything meaningful with that power. As Halliday laments, “[t]he logic of detention expanded as more people, regardless of their having performed any wrong previously known to law, became subject to forms of detention that barred judicial supervision.” Habeas weakened in England after 1790 because England had no Suspension Clause--no constraint on the circumstances in which Parliament could displace the efficacy of the writ.

The Supreme Court’s 1952 decision in United States v. Hayman is hardly part of our constitutional canon, and for good reason. In Hayman, the Court rejected an argument that 28 U.S.C. § 2255—enacted in 1948 to provide a statutory post-conviction alternative to habeas corpus for federal prisoners—violated the Suspension Clause, relying heavily on the fact that the statute itself allowed resort to habeas if the statutory substitute “is inadequate or ineffective to test the legality of his detention.”

What’s intriguing about Hayman isn’t Chief Justice Vinson’s opinion for the Court, but the brief filed on the merits by Hayman’s counsel—Harvard law professor Paul Freund. In particular, Freund’s brief devoted 18 pages to the argument that § 2255 was inconsistent with the Suspension Clause, relying on his own thorough discourse on the nature of habeas in pre-revolutionary England in support of his analysis. Freund’s brief captured in a nutshell many of the larger points at the heart of Halliday’s book—that habeas was primarily a common-law, and not statutory, remedy; that the Habeas Corpus Act of 1679 was a distraction; that the courts in the exercise of their common-law authority routinely issued the writ in cases in which contemporary commentators assumed it did not apply, including to collaterally attack convictions; that prisoners routinely were able to offer facts controverting the return; and that, in general, “the English practice was an evolving one, under continuous judicial and Parliamentary re-examination, and subjected to a series of liberalizing reforms by courts and legislature both before and after 1789.”

Freund was not arguing against the government’s view of the writ “as it existed in 1789,” though. Rather, he was arguing against any attempt to peg the writ to a defined historical moment. In his words, “[a]gainst this background of flux and empiric responsiveness, it would be mistaken in the extreme to try to capture the state of the law at a moment of time and identify it with the guarantee in the Constitution.”

In an important sense, Halliday appears to agree. Thus, as he notes in reference to the “as it existed in 1789” approach,

[a]s a matter of American jurisprudence, this might make sense, so long as this requirement is not taken to rest on a claim about history. But it does. Underlying the proposed standard is condescension: a belief that during later epochs, including our own, habeas corpus has more nearly reached its ideal form.

Ever the consummate and careful historian, though, Halliday offers no judgment on the normative appropriateness of tying the scope of the writ as protected by the Constitution to the scope of the writ in pre-revolutionary England at the Founding. Rather, the point of his project is to emphasize the care with which such tethering must take place, and the conventional assumptions that a thoroughgoing assessment of English history necessarily dispels. After completing Halliday’s manuscript, the reader should be left with little doubt as to what the “privilege of the writ of habeas corpus” entailed at the time the Constitution was drafted, and, as such, what the Constitution requires at a minimum. It remains for future generations, and not historians, to decide if the Constitution does—or should—protect anything more.

Time is running short on my guest-blogging stint (thanks again to Mary for the invite), so I thought I'd jump ahead to the last two key take-aways from Paul Halliday's new history of habeas in pre-revolutionary England--which I've blogged about previously here, here, and here. [In other words, here's the first of two posts today, so I make it in before August!]

My first three posts focused on the reality that habeas corpus in England in the seventeenth and eighteenth centuries was predominantly a common-law writ, and not a creature of statute, despite the Habeas Corpus Act of 1679 and our historical misreadings thereof. But to call it primarily a "common-law writ" is to bely the significant extent to which King's Bench increasingly relied on its equitable authority to expand the uses of the writ, and in ways that historians have often failed to appreciate.

Thus, for example, commentators often refer to the common-law rule that barred prisoners from controverting the facts of the return--that courts could not second-guess facts offered by the jailer in response to a writ of habeas corpus. That rule was abrogated by statute in England by the Habeas Corpus Act of 1816, but Halliday's research shows convincingly that King's Bench had found ways around the rule well over a century earlier. Halliday found examples of judges supplementing the record, whether by asking the prisoner’s counsel for relevant information about his client; asking court officers to examine factual matters in dispute; or accepting various forms of written testimony, the only purpose of which could have been to offer evidence rebutting averments in the return. Most creatively, the justices also appear to have adopted a practice of delaying the formal filing of the return for as long as possible, since the return did not become part of the formal record until it was filed. Thus, Halliday encountered a number of cases where returns were amended before they were filed—a curious step if no intervening evidence had been considered.

Friday, July 30, 2010

The American Academy in Berlin invites applications for its residential fellowships for the 2011–2012 as well as future academic years. The application deadline is October 1, 2010. Applications can be submitted online through the Academy’s website.

The Academy welcomes emerging as well as established scholars, writers, and professionals who wish to engage in independent study in Berlin. Approximately two dozen Berlin Prizes are conferred annually. Past Berlin Prize recipients have included historians, economists, poets, art historians, journalists, legal scholars, anthropologists, musicologists, public policy experts, and writers, among others. The Academy does not accept project proposals in mathematics and the natural sciences.

In addition to placing high priority on supporting the independent projects of its fellows, the Academy endeavors to aid fellows in expanding their professional networks and broader awareness of their work in Berlin and beyond. The Academy’s public outreach, which facilitates the introduction of fellows’ work to a wider audience, serves its mission of fostering transatlantic ties through cultural exchange....

Fellowships are restricted to candidates based permanently in the US. US citizenship is not required and American expatriates are not eligible to apply. Candidates in academic disciplines must have completed a PhD at the time of application. The Academy gives priority to the scholarly merit and significance of the proposal rather than the project’s specific relevance to Germany. Although it is helpful to explain how a Berlin residency might contribute to the project’s further development, candidates need not be working on German topics.

Current fellows include David Abraham, University of Miami, who is working on "The Boundaries and Bounds of Citizenship: Recognition and Redistribution in the US, Germany, and Israel." Further details and application information are here.

She was born on Oct. 18, 1954, in Butte to Jane and Frederick Arthur Pascoe Jr. She graduated from Butte High School in 1972. She earned a bachelor's degree in history from Montana State University in 1977, a master's degree in women's history from Sarah Lawrence College in 1980, and a PhD in history from Stanford University in 1986.

She taught women's history at the University of Utah from 1986 to 1996. She was the Beekman Chair of Pacific and Northwest History at the University of Oregon starting in 1996; in 2005 she also became a Professor of Ethnic Studies at UO.

Peggy is survived by her life-partner of 30 years, Linda Long, and their two daughters, Ellie and Joie Pascoe-Long; by her parents, Jane and Art Pascoe of Butte; and four siblings: Bill Pascoe, of Butte, Julie Pascoe of Morgantown, W. Va., Becky Cianca of Butte, and Jennie Macumber of Denver, Colo.; her mother-in-law, Jessica Holliday of Edmonds, Wash., as well as a close family of nieces and nephews. A brother, Robert Pascoe, died previously.

A memorial service will take place at a later date. Contributions to a memorial scholarship in Peggy's name can be made: University of Oregon Foundation, 360 E. 10th Ave., Suite 202, Eugene, OR 97401-3273 or online at https://supportuo.uofoundation.org/ with a note designating gift to the Peggy Pascoe Fund in History.

This article examines the ways in which enslaved litigants engaged with the ecclesiastical courts in 17th century colonial Lima. The article analyzes a sample of the types of litigation instigated by Peruvian slaves to assert their conjugal rights, to effect transfers of ownership, and to enforce oral promises of manumission. It also deals with complaints of domestic violence, abandonment, destitution, and infidelity brought by enslaved women. The article uses accusations of concubinage and adultery, and "crimes against public morality" to explore the role of church courts in policing the boundaries of inter-ethnic relationships.

This article should interest scholars of slavery working at the intersections of race, gender, and sexuality, particularly with regard to distinctions between the civil and common law systems of slavery. It should also interest historians of comparative family law and the canon law's treatment of marriage, illegitimacy and concubinage. How does a comparative perspective add to our understanding of the way that sexuality, race and gender influence family law, and vice versa? How does recourse to the court either influence hegemonic norms of marriage or contest these? Finally, the article should also interest those using legal records as narratives to "write history from below" through the optics of legal anthropology and critical legal studies.

Just posted on the Gilder Lehrman website is the lecture Reconstruction and Citizenship, originally delivered on June 12, 2007, by Eric Foner, the DeWitt Clinton Professor of History at Columbia University. According to Gilder Lehrman, Professor Foner “explains how the legal status of former slaves after the Civil War helped to define citizenship in the United States. He looks at the struggle to define the role of former slaves in society, and how those decisions affect us today."

Wednesday, July 28, 2010

Are conservatives racist? A number of political writers have complained recently that conservatives are being unfairly painted as racist because of the activities of a fringe of Tea Party activists, and that conservatism has a proud history of support for civil rights. Ross Douthat recently complained in the pages of the New York Times that the only reason we are seeing “white grievance” expressing itself in conservative politics is because elite institutions of higher education have discriminated against lower-class whites out of cultural bias. (See my fellow blogger Luis Fuente-Rohwer’s response here.)

I won’t respond directly to this improbable claim, but I am interested in the historical connection between race and the rise of the conservative movement in the U.S. In recent years, there has been an outpouring of historical writing on the rise of the right wing in American politics. At the last Organization of American Historians Annual Meeting, a panel was held on how historians should study conservatism “now that studying the Right is trendy.” Historians have explored the rise of anti-Communism, the John Birch Society, Presidential politics, the Goldwater campaign, the religious Right, the old and the New Right, and Ronald Reagan in California. Likewise, legal scholars like Ann Southworth have begun to write the history of the rise of legal conservatism, focusing on right-wing public interest lawyers, the Federalist Society, and the Olin Foundation’s sponsorship of the law-and-economics movement at law schools. Yet these histories of conservative movements have had surprisingly little to say about race, except as a “wedge issue” in electoral politics.

It may seem strange to suggest that there has been little attention to race and conservatism when the reaction to the civil rights movement has received so much historiographic attention. But it’s a remarkably regionalized – even segregated – literature on “massive resistance” in the South. According to the standard story, a Southern backlash to the civil rights movement fueled the electoral shift from a solid white South for the Democrats to the Republican Party, as well as the “Southernization” of American politics, as race has been a reliable “wedge issue” for the Republicans to pry white working-class voters away from the Democratic Party.

Yet, as a new generation of historians of racial politics in the South as well as the urban North (especially Joe Crespino, Matt Lassiter, and Tom Sugrue) have shown, the South is not “another country.” The politics of nonviolent – and legal – backlash against African Americans moving into white neighborhoods and public spaces was a national phenomenon, tied centrally to the rise of the “New Right” and the conservative legal movement. Moreover, conservatives in law and in politics successfully drew on historical narratives about race that tell reassuring stories about the path from slavery to freedom, what Nancy McLean has called “Neoconfederate” stories.

“Color-blind constitutionalism,” which has been identified and critiqued by a generation of critical race theorists, has a history in post-War America. Conservatives appropriated this once-liberal ideology not only through legal opinion-writing, but drawing on the narratives generated by grass-roots movements of opposition to integration, especially in housing and schools – narratives about “freedom of choice,” meritocratic individualism, and religious freedom.

I’ve been thinking about this a lot as I’m in the early stages of a research project on the history of race, law and conservatism in the United States from the 1960s through the 1990s, bringing together the legal history of color-blind constitutionalism with the social history of grass-roots conservative movements that organized to oppose the integration of African Americans in housing, schools, and public life in American cities. Please send me your ideas! I am curious what legal historians think about the current politics of race and its connections to a longer post-civil rights era history.

As part of its holdings of legal art and visual materials, the Harvard Law School Library owns a collection of over 4000 portrait images of lawyers, jurists, political figures, and legal thinkers dating from the Middle Ages to the late twentieth century. Although most of these prints, drawings, and photographs depict legal figures prominent in the Common Law, a significant number portray jurists and legal educators associated with the Canon and Civil Law traditions. The collection is particularly strong in images of eighteenth and nineteenth century British and American lawyers, ranging from such well known historical figures as William Blackstone, Jeremy Bentham, John Marshall, and Joseph Story to many lesser known jurists and legal educators. The collection also contains images of many graduates of Harvard College and the Harvard Law School. Librarian Eldon R. James and Dean Roscoe Pound began the collection in the first quarter of the twentieth century as an adjunct to the School's "basic collection" of paintings and sculpture. It has continued to grow significantly over the years, and today constitutes a major resource for images of lawyers and jurists that have shaped our Western legal heritage.

The collection of portrait images is the most heavily used portion of the Library's visual materials. Researchers and publishers almost daily request reproductions from this collection to illustrate scholarly articles, monographs, textbooks, Web sites, and television programs. Although the most frequent request is for reproductions of the likenesses of individuals important in the history of the law, the collection has also been consulted for iconographic images (e.g., scales of justice, blindfolded justice) and for scenes depicting judicial activity (e.g., courtrooms, assizes). Researchers in fields other than legal history may also benefit; many of the images will interest students of social history, costume, art history, and heraldry. Students of art may also find it useful as the collection covers many centuries and styles of portraiture.

Tax law is a technical area of law which does not seem to be culturally specific. It is thus seen as easily transferable between different societies and cultures. However, tax law is also based on definitions and notions which are not universal (the private sphere, the family, the gift etc.). So, is tax law universal or particular? Is it indeed easily transferable between different societies? And in what ways does tax law reflect ethnic or cultural rather than economic differences?

This Article seeks to answer these questions by analyzing one specific example - the history of income tax legislation in Mandatory Palestine. This history reveals the dual nature of income taxation. On the one hand, the Income Tax Ordinance which was enacted by the British in Palestine in 1941 was based on a one-size-fits-all colonial model, and the lawyers involved in its enactment, in Palestine and in the Colonial Office in London, made relatively little effort to adapt it to local conditions. On the other hand, other actors - the officials, politicians and businessmen involved in the initial debate about the imposition of income taxation in Palestine in the 1930s, and the administrators involved in the application of the specific rules of the Ordinance after it was enacted in the 1940s - were aware of the need to adapt the law to the specific conditions of Palestine.

Thus, while on a formal level the Ordinance seems to represent a process in which the tax law of Palestine converged with that of other British colonies (and ultimately, with English income tax law), once we expand our framework and examine not just law in the books, but also law in action, and actors such as politicians and administrators, we discover that particular local conditions were an important factor in the enactment and application of the Palestine Income Tax Ordinance. The study of the process of transplantation, the Article concludes, should therefore focus not only on the formal norms being transplanted, but also on the role of the different non-legal actors involved in the process.

This is a review essay discussing Brian Tamanaha's book BEYOND THE FORMALIST-REALIST DIVIDE (Princeton University Press, 2010).

Regarding Tamanaha's historical thesis that "formalism" was not widely accepted in the 19th-century and that realist themes long predate the American Legal Realists (hereafter "Realists") of the 1920s, I argue that (1) Tamanaha adduces enough evidence to state at least a *prima facie* case against any historian who wants to claim that in the 19th-century jurists and scholars generally believed that common-law judges did not make law in new circumstances ("Natural Law Formalism") and that judging was simply a mechanical exercise in deductive reasoning ("Vulgar Formalism"), although we still need to know how representative Tamanaha's evidence is; (2) whether 19th-century jurists and scholars held or rejected more sophisticated (and philosophically interesting) forms of formalism is not addressed at all by Tamanaha's evidence; (3) Tamanaha does not make even a *prima facie* case that the distinctive theses of the Realists had widespread traction in the 19th-century, partly because he emphasizes themes that were not, in fact, distinctive of Realism (e.g., the political influences on judicial decision), and partly because, when considering distinctive Realist themes, he adduces inapposite evidence or misrepresents the sources he quotes.

Regarding Tamanaha's jurisprudential thesis that we can now move beyond the formalist-realist divide, I argue that (1) what Tamanaha calls "balanced realism" is a somewhat less precise version of the account of Realism developed by Schauer and myself going back some twenty years; (2) Tamanaha is mistaken in arguing that everyone is now a "balanced realist" largely on the basis of remarks by post-Realist judges (some of whom, like Harry Edwards, recognize that it remains controversial) and without according adequate attention to countervailing evidence, such as the Vulgar Formalism characteristic of public political debate about adjudication in the U.S.; theoretical accounts of adjudication like Ronald Dworkin's, which try to vindicate Natural Law Formalism without any hint of Vulgar Formalism; and the self-understanding of other common-law legal cultures, like England's, which embody formalistic elements; and (3) Tamanaha's attempt to show that "formalism" is "empty" actually demonstrates its substantive meaning for many contemporary theorists as a normative theory or ideal for adjudication, rule-application and/or legal reasoning. "Formalism" and "realism," once precisely characterized, remain useful jurisprudential categories, whatever the historical verdict on whether 19th-century jurists held Vulgar or Natural Law versions of formalism.

LHB readers will remember the on-line discussion of Tamanaha's work with Lewis Grossman here, here and here.

Alexander Hamilton, eulogizing the renowned general Nathanael Greene in 1789, claimed that without the American Revolution, Greene's true genius might never have been revealed. Jack Rakove, a Pulitzer Prize-winning historian at Stanford University, applies Hamilton's insight about Greene to the entire cohort of Revolutionary leaders in his elegantly written new book. Part collective biography, part narrative history of the years 1773 to 1792, "Revolutionaries" adeptly explores the factors that led these remarkable men to reject British sovereignty and create a new nation. "The Revolution made them," Rakove asserts, "as much as they made the Revolution."

Bunker’s book is devoted to the premise that we distort the Pilgrims in our conventional historical accounts, which presents them as embryonic Americans rather than as expatriate British. But in emphasizing their rugged entrepreneurship, Bunker makes the same mistake himself, reading a capitalistic American afterlife into the chaotic experience at Plymouth—and indeed all the way back into the “frontier” of the Pilgrim quadrilateral. The fur trade may have secured the fate of the colony--a story told more authoritatively in Eric Jay Dolin's "Fur, Fortune, and Empire"--but, as Bunker himself allows, the Puritan success with pelts was improvised and inadvertent, and the beaver boom that buoyed Plymouth fortunes lasted only ten years. When it ended, the original Pilgrims and the “Great Migration” greenhorns who had followed them “blundered” into cattle ranching, and found themselves already settled on land — the salt marsh wetlands of coastal Massachusetts—remarkably well-suited to the undertaking. The Pilgrims may have been entrepreneurs—in Scrooby, at Boston—but the success of their colony was not entirely an entrepreneurial one. They got a little help from providence, too.

During the New Deal era, the exclusion of agricultural and domestic employees was well-understood as a race-neutral proxy for excluding blacks from statutory benefits and protections made available to most whites. Remarkably, one of these New Deal era exclusions remains on the books. Despite its racist origins, Section 152(3) of the National Labor Relations Act (NLRA) still excludes agricultural and domestic workers, completely unaltered after 75 years.

This article demonstrates why the NLRA's agricultural and domestic worker exclusion should be considered a racially discriminatory statute motivated by racial animus. Although most historians have concluded correctly that the exclusion was a concession to southern racism, legal scholars have thus far not reached this conclusion. It is crucial that this law be identified correctly as racist and unjust to provide a rationale for its abolition and to remedy, finally, the ongoing injury it continues to cause to millions of agricultural and domestic workers. A review of the social and political context of the New Deal and the deployment of the same exclusion in related statutes, such as the Social Security Act and the Fair Labor Standards Act, shows how and why the NLRA's exclusion should be deemed racially discriminatory.

Having established that the statute is racially discriminatory, this article makes the case for why Section 152(3) should be considered unconstitutional or repealed. While historical evidence permits us to strip away the law's race-neutral aura, this article demonstrates how current constitutional standards make the invalidation of such a law difficult. The requirement of proof of discriminatory intent makes it difficult to prove that a racially discriminatory law violates the Equal Protection Clause. While this difficulty is not insurmountable, it raises the troubling possibility that a manifestly racist law might not be found unconstitutional. To ensure that such racism is not perpetuated, the article also explores a strategy favoring legislative repeal of the law.

More legal history from Aoteaora. Voxy, an online newspaper, has a report on a project at the Victoria University of Wellington to collect the legal sources of New Zealand's indigenous people. The report commences:

Two major funded works in Maori have recently been completed by researchers and staff at Victoria University's Law Faculty, following two years of hard work.

The Faculty's Legal Maori Project team has created a Legal Maori Corpus and Legal Maori Lexicon, which will both be invaluable resources for researchers of Maori legal history and Maori linguists.

The Legal Maori Corpus is an unprecedented collection of modern and historical Maori legal language texts totaling just on eight million words.

"When we started the project two years ago we had no idea the final size of our corpus would be so great, and to our knowledge, it is the largest structured corpus of Maori language texts ever compiled," says project co-leader and Faculty lecturer, Mamari Stephens.

All texts pre-1910 are now publicly available for researchers to use, and will enable them to analyse patterns of language use and vocabulary, as well download the texts themselves for their own use. The post 1910 texts will be made available once copyright permissions are gained.

Friday, July 23, 2010

Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777-1893 is an older article just posted, by Barry Sullivan, Loyola University Chicago School of Law; Stanley N. Katz, Princeton University - Program in Law and Public Affairs; and Capt. Paul Beach, Judge Advocate General's Office - Washington, D.C. The article appeared in the Law & History Review (1985). Here’s the abstract:

The law of charitable trusts in New York provides a wonderful example of the complexity of legal change. We hope to show that the so-called "restrictive" policy followed by New York was not really a legal policy of the state in the sense that it represented a rule deliberately designed to achieve a specific policy goal. On the contrary, it was largely the result of a highly traditional common law judicial response to social policy inputs having nothing at all to do with either the law of charity or the law of trusts. To this extent, it is an example of the "autonomy of law." There were changes in New York law during the period that is the subject of this paper. We trace these developments as they occurred, by first surveying the English law of charity as it existed at the time of the Revolution, and then tracing the development in New York of a state law of charity from that time until 1844, when the New York courts appeared to have established a systematic approach to the subject. We then discuss the political and judicial reforms that were manifested in the Constitution of 1846 and resulted in the abolition of charitable trusts. Finally we recount the failure of Tilden's will and the resulting legislation that ultimately changed the law of charity in New York. We conclude by assessing the importance of this analysis for the history of American charity law and the history of American charity itself.

Since my earlier post, prompted by an essay by John Q. Barrett on the New Dealer David Ginsburg, I have happened upon my notes from Ginsburg's official file at the Franklin Roosevelt Library, which I took while researching his service as general counsel of the Office of Price Administration during World War II. The most interesting note is on the encomium of Ginsburg by Prentiss Brown (left), an ex-Senator from Michigan who briefly served as the OPA’s administrator. Although Brown might have been expected to distance himself the New Dealer, his letter to the president, written in March 1943, as the young lawyer, denounced in the press as a draft dodger, was seeking an Army post, was surprisingly warm. Brown urged Roosevelt to assist Ginsburg in what I know is a very great crisis in his life.” At OPA he was “the best-informed man on the general subject of price control with whom I have had any contact” and had “given remarkable service to the government of the United States.”

When Brown replaced the New Dealer Leon Henderson, Ginsburg had given “some very good reasons” why he ought to step down as well. Looking back, Brown saw his point. “David is young and in my judgment a little too strongly criminal-enforcement minded.” Moreover, “because he has brought so many lawyers into OPA,” he “would find great difficulty in going along with my policy of letting lawyers go. I think they have clogged up OPA.” But although the two had thus differed on the lawyers’ role in OPA, they had done so “with the warmest mutual admiration for each other.”

In closing, Brown urged Roosevelt not to give much credence to the complaints of congressmen. “I know the Congress pretty well. I was in it for quite a while,” he reminded the president. “There are able, patriotic men, mediocre men, and some who are merely intolerant in it. In the minds of this latter group David is guilty of high crimes and misdemeanors. The crimes are, first, he is a Jew; second, he is smart. The misdemeanor is that he is a graduate of Harvard Law School.”

Roosevelt recommended to Secretary of War Henry Stimson that Ginsburg be sent to Officer Candidates School upon completing basic training. For the rest, see Barrett’s appreciation.

This paper explores the story of a woman who "created" her life in the law in the late nineteenth and early twentieth centuries. Although now almost unknown, Cornelia Sorabji achieved prominence as a woman pioneer in the legal profession, who provided legal services to women clients in northern India, the Purdahnashins. Sorabji's experiences as a woman in law were often similar to the stories of other first women lawyers in a number of different jurisdictions at the end of the nineteenth century: all of these women had to overcome gender barriers to gain admission to the legal professions, and they were often the only woman in law in their jurisdictions for many years. Yet, as Sorabii's story reveals, while ideas about gender and the culture of legal professionalism could present formidable barriers for aspiring women lawyers, these ideas sometimes intersected in paradoxical ways to offer new opportunities for women to become legal professionals. In exploring the impact of gender and legal professionalism on Sorabji's legal work, the paper also suggests that her story presents a number of challenges and contradictions that may require new approaches to gender history so as to capture the complexity of stories about women lawyers.

[Earlier I posted on a news report of a project by some New Zealand legal historians to collect the "lost cases" of the country's Supreme Court. I have the following update from Damen Ward of the law faculty of the University of Victoria at Wellington.]

The “New Zealand’s Lost Cases” databases are an important academic resource not just for New Zealand historians, but for scholars of British colonization, comparative settler societies, and imperial legal history. The source database shows where court records can be found around New Zealand and the case database reproduces the cases themselves, either from judge’s notebooks or from newspaper reports. A third part of project will reproduce significant decisions of the Native Land Court. At present the database covers all Supreme Court cases from 1840-1860, and cases from the 1860s are being added regularly.

The case database is word-searchable. A recent conference at Victoria University of Wellington showed the range of research possibilities opened up by the database; the papers offered included discussions on colonial marriage, shore-whaling and commercial customs, dower, informal land titles, and judicial attitudes to the imperial prerogative in Crown colonies. The conference programme is here.

The NZ databases may allow interesting comparative studies to be made with the Australian jurisdictions covered by the Kercher databases. Hopefully, the databases will also encourage conversations between New Zealand legal historians and those with interests in other jurisdictions, including in Canada and the United States.

Here's the abstract for Just Say No: Birth Control in the Connecticut Supreme Court before Griswold v. Connecticut:

This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control clinics closed in Connecticut for twenty-five years. The lack of birth control clinics may not have greatly affected middle-class and wealthy people who could afford private medical care, since doctors would often ignore the laws. The lack of clinics primarily harmed lower-income women who needed the free or low-cost services birth control clinics provided. It was the impact of birth control restrictions on the poor that led Dr. C. Lee Buxton, along with Estelle Griswold, to publicly violate the law by opening the clinic that resulted in their arrests, and ultimately in the Supreme Court ruling in Griswold.

Beyond its importance to the history of reproductive rights, this essay illuminates the history of rights under state constitutional law. Until 1965, the United States Supreme Court largely avoided cases involving reproductive rights, with the notable exception of sterilization. Appeals to the Supreme Court in cases involving constitutional challenges to state restrictions on contraceptives were regularly dismissed for want of a substantial federal question or due to lack of standing, so that substantive rulings in birth control cases were confined to the state courts and, on questions of federal law, to the lower federal courts. Because the Supreme Court did not hear these cases, the right to use birth control was determined by state law until 1965, when the Court decided Griswold v. Connecticut. Consequently, an examination of this area of law enables us to see the independent treatment of constitutional rights by one state court without meaningful input from the U.S. Supreme Court.

It was among the most notorious criminal cases of its day. On August 11, 1921, in Birmingham, Alabama, a Methodist minister named Edwin Stephenson shot and killed a Catholic priest, James Coyle, in broad daylight and in front of numerous witnesses. The killer's motive? The priest had married Stephenson's eighteen-year-old daughter Ruth--who had secretly converted to Catholicism three months earlier--to Pedro Gussman, a Puerto Rican migrant and practicing Catholic.

Having all but disappeared from historical memory, the murder of Father Coyle and the trial of Reverend Stephenson that followed are vividly resurrected in Sharon Davies's Rising Road . As Davies reveals in remarkable detail, the case laid bare all the bigotries of its time and place: a simmering hatred not only of African Americans, but of Catholics and foreigners as well. In one of the case's most interesting twists, Reverend Stephenson hired future U.S. Supreme Court justice Hugo Black to lead his defense team. Though Black would later be regarded as a champion of civil rights, at the time the talented defense lawyer was only months away from joining the Ku Klux Klan, which held fundraising drives to finance Stephenson's defense. Entering a plea of temporary insanity, Black and his client used both religion and race--accusing the Puerto Rican husband of being "a Negro"--in the hopes of persuading the jury to forgive the priest's murder.

Placing this story in its full social and historical context, Davies brings to life a heinous crime and its aftermath, in a brilliant, in-depth examination of the consequences of prejudice in the Jim Crow era.

Reviews and blurbs:

"First-rate history. Detailed yet fast-paced, it lays bare the common, deep-rooted bigotry of a region and era that made the jury verdict predictable Davies' fascinating book is an excellent work of narrative history. Rising Road deserves a wide audience." --Columbus Dispatch

"An illustrative tale about its time, well worth the telling." --Publishers Weekly

"In this exquisite book, Sharon Davies takes us deep into the dark heart of the Jim Crow South, where she uncovers a searing story of love, faith, bigotry and violence. Rising Road is a history so powerful, so compelling it stays with you long after you've finished its final page." --Kevin Boyle, author of the National Book Award-winning Arc of Justice: A Saga of Race, Civil Rights and Murder in the Jazz Age

"A deep knowledge of Southern and legal history, and of the dramatic give-and-take of criminal trials, allows this compelling human story of religion, race and murder to show how the barbarities of 1920s Alabama had played out in families, courts and politics." --David Roediger, Professor of History at University of Illinois and author of How Race Survived U.S. History

Tuesday, July 20, 2010

The Legal History Blog thanks Mark Tushnet, who has been with us as a guest since the beginning of June. Mark is the William Nelson Cromwell Professor of Law at Harvard Law School, and writes widely in American Legal History, Constitutional Law, and Comparative Constitutional Law. His most recent book is Why the Constitution Matters, just out in May from Yale University Press, and lauded by Sandy Levinson as "profoundly important and illuminating." According to the press:

In this surprising and highly unconventional work, Harvard law professor Mark Tushnet poses a seemingly simple question that yields a thoroughly unexpected answer. The Constitution matters, he argues, not because it structures our government but because it structures our politics. He maintains that politicians and political parties—not Supreme Court decisions—are the true engines of constitutional change in our system. This message will empower all citizens who use direct political action to define and protect our rights and liberties as Americans.

More book details are here. Mark’s posts, which have generated a lot of interest around the blogosphere, have included:

The Toronto Women’s Police Court was the product of a familiar combination of progressivism and feminism. The Progressive movement of the late 19th and early 20th centuries included many prominent “social feminists” of the type studied by historian J. Stanley Lemons in THE WOMAN CITIZEN. They perceived no tension between their commitment to equal rights for women and either their acceptance of traditional gender roles or their conviction that protection of the weak from exploitation by the strong was an essential function of government. Reformers’ extensive observations of the workplace and the courts (though not the farm or the home) convinced progressive feminists (or feminist progressives?) that women and children were victims of such mistreatment. The U.S. Supreme Court’s unanimous declaration in MULLER V. OREGON that “As minors, though not to the same extent, [woman] has been looked upon by the courts as needing especial care that her rights be preserved” expressed, therefore, more an ideal than a reality. But the ruling gave force to this ideal by sustaining special labor legislation for women. The establishment of separate criminal courts for women, counterparts of the emerging juvenile courts, was a similar experiment in “maternal justice” (p.15.) The “mothers” were the women who staffed the courts; the “daughters,” the offenders and victims who came before it. Maternal feminism emphasized improvement and rehabilitation, but, as the court’s history showed, mothers can also be punitive and judgmental.

The Toronto court was the brainchild of the Toronto Local Council of Women (TLCW). Margaret Patterson, the physician and former missionary who became the court’s second presiding judge, had much in common with the American reformers who advocated special labor legislation. Patterson and her TLCW colleagues monitored the City’s police courts with “a steely determination to assess the criminal justice system from a woman’s point of view” (p. 1). Their discoveries were similar to what American activists like Florence Kelley and the Goldmark sisters found in the workplace: women were ill-treated by those with power over them. Not only did Toronto’s police courts provide admission-free entertainment for “foot-loose men” who wandered in off the street, but they also offered the unscrupulous a supply of potential victims for exploitation; TLCW members concluded that “for women, the criminal justice system was criminogenic…Something had to be done” (p.2). These activists did what their counterparts in most large American cities (but only one other Canadian city, Edmonton, Alberta) did during the Progressive Era: they [*281] persuaded the government to create a separate court for women.

Monday, July 19, 2010

SCOTUSblog is currently accepting applications for unpaid student internships with the blog during October Term 2010. Details about these positions’ qualifications and responsibilities and how to apply are here.

In the thirty years leading into Civil War, orators delivered hundreds of addresses to college literary societies throughout the United States. Those addresses, which were frequently given by lawyers, lawyer-trained politicians, and judges, condensed the orators' ideas about law, history, economy, technology, and education together into a short compass. They provide an important and overlooked set of data for understanding how antebellum intellectuals saw law in relation to moral, technological, and economic progress.

"The Republics of Liberty and Letters" focuses the thirty-four addresses given at the University of North Carolina from the 1827 to 1860 to see how the orators dealt with ideas about the Union, law, and constitutionalism, along with the ubiquitous but vague trope of "progress." The addresses reveal strong support for Union, often framed in terms of support for the Constitution, and emphasize the positive role that speech has in shaping politics. They are substantially more moderate in their approach towards the era's conflict over slavery and Union than addresses at many neighboring schools. However, there were also points of divergence between the orators. The Whig orators and the Democrat orators, for instance, divided over the place of the educated, the importance of the rule of law, and the dangers posed by increasing democracy. The addresses, thus, reveal important points of convergence as well as division.

"The Republics of Liberty and Letters" is primarily about the content of political and legal ideas at the University of North Carolina from the 1830s through the 1850s. Yet, it has implications for cataloging constitutional ideas and then tracing how they relate to constitutional culture. It invites further work on ideas in literary addresses at other schools, along with work on addresses given by lawyers, politicians, and judges in other venues -- like legislatures and courts. Those popular constitutional ideas can then be put together with "formal" constitutional law (law in the courts) and with legislative action, and in that way enrich our understanding of the sources and contours of constitutional history.

In my last post on Paul Halliday's new book on the history of habeas corpus in pre-revolutionary England, I focused on Halliday's significant conclusions with regard to the Habeas Corpus Act of 1679, and how it was largely unnecessary -- how most of the key innovations classically traced to that statute can in fact be found in the jurisprudence of King's Bench in the years and decades before its enactment.

More than just unnecessary, though, Halliday's work also emphasizes the double-edged nature of the Habeas Corpus Act of 1679. In its terms, the Act did not include within its scope detention pursuant to legislative orders--indeed, it was largely limited to cases of criminal detention. And while such orders might have been subject to review at common law, the Act undermined the common-law writ by, in Halliday's words, "promoting the assumption that the writ could be effective only when supported by statute." And if the writ relied on Parliament, then Parliament could take it away...

Thus, it was ten years after the Habeas Corpus Act of 1679 that Parliament first "suspended" habeas corpus, passing "An Act for impowering his Majesty to apprehend and detain such persons as he shall find just cause to suspect are conspiring against the government." The suspension was only valid for one month (although it was twice renewed), but the precedent was set: Parliament would pass similar acts on dozens of occasions throughout the eighteenth century, some of which would even form part of the casus belli for the American Revolution. And although these statutes did not purport to constrain the common-law jurisdiction of King's Bench, they rendered such jurisdiction moot, because they provided for imprisonment in the specified cases "any law, statute, or usage to the contrary in any wise notwithstanding." In other words, so long as these statutes were in effect, any detention pursuant thereto was per se lawful--or, at least, not an appropriate basis for habeas relief.

Just out from Texas A&M University Press is Bridging the Constitutional Divide: Inside the White House Office of Legislative Affairs, edited by Russell L. Riley, chair of the Miller Center for Public Affair's Presidential Oral History Program. According to the Center, “The book is based on a symposium at which seven former heads of the White House Office of Legislative Affairs, representing every president from Nixon to Clinton, gathered at the Miller Center to discuss White House-congressional relations. The result is candid insider accounts on how presidents attempt to influence Congress.”

"The sesquicentennial of the Civil War now looms on the horizon, promising its own deluge of books of every size, shape and description" Eric Foner writes at The Nation. "We will be fortunate indeed if in sheer originality and insight they measure up to Confederate Reckoning and The Long Shadow of the Civil War, new works by Stephanie McCurry and Victoria Bynum, respectively, on the Confederate experience." According to Foner:

McCurry and Bynum are less interested in why the South lost-although their books shed light on this question-than in the social and political consequences of how it conducted the war. Taken together, they show how the effort to create a slaveholders' republic sundered Southern society and changed the contours of Southern politics. The subtitle of McCurry's book-"Power and Politics in the Civil War South"-is surely meant to be ironic. Most readers will no doubt expect another study of Jefferson Davis's administration or the battle between advocates of states' rights and central control. But McCurry challenges us to expand our definition of politics to encompass not simply government but the entire public sphere. The struggle for Southern independence, she shows, opened the door for the mobilization of two groups previously outside the political nation-white women of the nonslaveholding class and slaves.

Years before she became a politician famous for big hats and robust feminism, Abzug worked for the Civil Rights Congress, a small but aggressive group with close ties to the Communist Party. The CRC, with aid from the Soviet bloc, whipped up an international outcry against McGee's execution. Diego Rivera, Frida Kahlo and Dmitri Shostakovich dispatched cables of outrage, and a band of protesters chained themselves to one of the columns at the Lincoln Memorial.

At the same time, the CRC connection enabled the authorities to charge that McGee's defense was a prime example of subversive meddling by "the Reds."

Shortly after the cataclysmic Watts riot in the summer of 1965, word spread around Washington that the Johnson administration had in its hands a secret report on the state of Black America. It had been written, said the rumors, by a little-known official in the Department of Labor: Daniel Patrick Moynihan. And it was "a political atom bomb," according to columnists Rowland Evans and Robert Novak, "which strips away usual equivocations and exposes the ugly truth about the big-city Negros' plight." What followed, as Brown University historian James T. Patterson makes clear in this fine-grained study, was one of the great tragedies of postwar policy making.

the federal government had to confront what Moynihan believed to be the great plague sweeping through black ghettos: the disintegration of traditional family life. Much of the report was devoted to presenting the grim evidence of that disintegration....

The story of the Moynihan Report's demise has been told a number of times before. Patterson's key contribution is to show how the controversy that Moynihan triggered continued to warp public discussion of the concerns he raised long after the report itself had been filed away.

Saturday, July 17, 2010

From June 21 to 24, the Miller Center for Public Affairs hosted the Presidential Sites and Libraries Conference, which, according to the Center "brought together those who work to preserve the lives of U.S. presidents and included speeches by Pulitzer Prize-winning presidential biographers. The conference was sponsored by the American Association for State and Local History, James Madison's Montpelier, the Miller Center of Public Affairs, Monticello, the National Park Service, the National Archives and Records Administration, President Lincoln's Cottage, and the White House Historical Association. The available webcasts are include talks by Joseph Ellis, Jon Meacham, and Michael Beschloss. In addition, C-SPAN taped several sessions for broadcast; check the C-SPAN web site for scheduling details. Archived webcasts of select sessions are available here.

In her diary in 1916, Virginia Woolf referred to legal history as "something that matters to no one; & will never be used, seen, or read."

Ten weeks ago, my 48-page legal history paper started a Texas-sized controversy about a University of Texas dormitory named for a Klan leader.

UT first admitted African-American students in 1950 after the NAACP's Legal Defense Fund lawyers beat Texas before the US Supreme Court in Sweatt v. Painter. Four years later, the great NAACP lawyers won Brown v. Board of Education.

In December 1923, the state congress in Sonora, Mexico, enacted Law 31, a pointed anti-miscegenation law that prohibited marriage between Mexican women and Chinese men. Although prejudice against Chinese in Sonora was long-standing, Law 31 marked a decided uptick in the use of law and legislation to discriminate against them. Mexican Chinese couples responded in kind: they challenged Law 31 in federal court, seeking amparo - judicial relief - against its enforcement. The petitions and public reaction to them tell a complex story about constitutional interpretation, judicial process, federalism and national identity, on the one hand, and race, gender, marriage and family, on the other.

At the lower federal court level, the nearly complete success of Chinese amparo petitions against Law 31 in 1924 and 1925 represented a short span of time when a handful of federal judges made real in the lives of a despised minority the promises of equality set forth in Mexico's 1917 Constitution. The federal judges, and Arsenio Espinosa in particular, did so by strictly applying the law and, thus, asserting the supremacy of the federal Constitution over the ordinary legislation of the state of Sonora.

In contrast, the Second Chamber of the Mexican Supreme Court decided the Law 31 appeals it heard on other grounds: the proper allocation of legal authority. In the first case, the court considered what government entity could impose fines and punishments. In the second case, the court evaluated whether and how state authorities could regulate marriage. Through its decisions, the Second Chamber ultimately legitimated Sonora's defiance of federal law and its state-sanctioned discrimination against Chinese. Marriage equality failed and with it some of the promise of the 1917 Constitution.